Citation Nr: 1822015	
Decision Date: 04/13/18    Archive Date: 04/25/18

DOCKET NO.  14-18 888	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to an increased disability rating in excess of 30 percent for right forearm gunshot wound, through and through, with ulnar neuropathy and peripheral neuropathy.

2.  Entitlement to an increased disability rating in excess of 20 percent for left upper extremity peripheral neuropathy.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. B., Counsel


INTRODUCTION

The Veteran served on active duty from February 1968 to November 1969.    

This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.  The Columbia, South Carolina, RO now maintains jurisdiction.  


FINDINGS OF FACT

1.  The Veteran's right forearm gunshot wound, through and through, with ulnar neuropathy and his right upper extremity peripheral neuropathy do not impact entirely different functions, and as such, will not be rated separately.  

2.  The Veteran's left upper extremity peripheral neuropathy is manifested at worst by mild, incomplete paralysis of all radicular groups.  


CONCLUSIONS OF LAW

1.  The criteria for a disability rating in excess of 30 percent rating for right forearm gunshot wound, through and through, with ulnar neuropathy and peripheral neuropathy are not met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.55, 4.56, 4.73, Diagnostic Code 5307 (2017).

2.  The criteria for a disability rating in excess of 20 percent for left upper extremity peripheral neuropathy are not met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.124a, Diagnostic Code 8513 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board.  Indeed, the Veteran received VCAA notice in February and March 2012, prior to the initial adjudication of the issues on appeal.  Therefore, additional notice is not required, and any defect in notice is not prejudicial.  See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

The Board finds that the VA medical opinion evidence is adequate as it is predicated on an accurate reading of the medical and lay evidence as well as a complete examination of the Veteran.  The examiner considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4).  

The Board notes the Veteran's contentions regarding the 2012 VA examiner's opinion as to whether peripheral neuropathy is even present in the right upper; however, despite the examiner's findings, peripheral neuropathy was service connected.  The VA examiner reported on the current neurologic findings of the right upper extremity, which have been considered in totality herein regardless of which nerve the examiner attributed the symptoms.  There is no evidence that the Veteran's right upper extremity disability has worsened since the 2012 VA examination.  Therefore, the Board finds that a new VA examination is not warranted.  

In this case, neither the Appellant nor his representative has raised any other issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  See 38 C.F.R. § 4.1 (2015).  Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2014 & Supp. 2015); 38 C.F.R. Part 4 (2015).  While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). 

Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating.  38 C.F.R. § 4.7 (2015).  When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2015).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Gunshot Wound, Forearm, with Ulnar and Peripheral Neuropathy

The Veteran contends that he is entitled to an increased rating for the gunshot wound, through and through, right forearm with ulnar and peripheral neuropathy (forearm disability).  The Board notes that the Veteran has not made any contentions that his muscle disability of his dominant arm is worse than moderately-severe, as currently rated under DC 5307, but rather has focused his argument for a higher/separate rating for peripheral neuropathy.  Indeed, the Veteran does not contend nor is there any evidence that the muscle involvement should be rated as severe in this case.  See 38 C.F.R. § 4.56 (d) (2017).  Instead, the Veteran has asserted throughout the claim that his peripheral neuropathy impacts a different function than the gunshot wound, right forearm, disability with ulnar neuropathy.  

The Veteran's forearm disability is currently rated as 30 percent disabling under 38 C.F.R. § 4.73, DC 5307 for an injury to muscle group VII, impacting the flexion of the wrist and fingers.  The forearm disability has been rated with ulnar neuropathy since 1969 and was recharacterized in the July 2012 rating decision to include peripheral neuropathy of the right upper extremity.  A muscle injury evaluation will not be combined with a peripheral nerve paralysis evaluation of the same body part unless the injuries affect entirely different functions.  38 C.F.R. § 4.55 (a) (2017).

The Board notes that in December 1970, when service connection was initially granted for the right forearm disability, which included ulnar neuropathy at the time, the ulnar neuropathy manifested in both sensory and motor changes, with numbness along the inner aspect of the right arm and hand, slight atrophy of the musculature between the bones on the ulnar side of the hand, and weak grip.  In short, the sensory and motor functioning of the right forearm and hand have been compensated in the disability rating from the beginning.  

In order for the Veteran to receive the requested separate rating for peripheral neuropathy, there must be evidence that the peripheral neuropathy impacts a different function than currently contemplated by the current forearm disability rating.  Unfortunately, the evidence demonstrates that the peripheral neuropathy disability impacts the same functioning that is already compensated in the 30 percent disability rating.  

Upon VA examination in March 2012, the Veteran reported pain, numbness, and tingling along the ulnar border of his forearm and the right ring and little fingers.  He reported difficulty discharging his weapon while working as a police officer and mild difficulty writing and typing.  The examination revealed moderate, intermittent pain and mild paresthesias and numbness of the right upper extremity, less than normal grip and left elbow extension strength, decreased light touch sensation, and normal position, vibration, and cold sensation.  In short, both sensory and motor functioning was revealed upon examination.  

VA examination and VA treatment records throughout the period on appeal do not include evidence of impairment of any function due to right upper extremity peripheral neuropathy that is not currently contemplated and compensated in the 30 percent disability rating assigned for the forearm gunshot wound with ulnar neuropathy.  As such, a separate disability rating is not warranted for a muscle and peripheral nerve disability on the basis of each impacting a different function.  

Finally, the Board notes that neither the Veteran nor his representative has raised any other issues such as entitlement to a rating on an extraschedular basis or a total disability rating based on individual unemployability, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Base on the foregoing, the Board finds that an increased disability rating in excess of 30 percent right forearm gunshot wound, through and through, with ulnar and peripheral neuropathy is not warranted and the claim must be denied.  38 U.S.C. § 5107(b).  


Peripheral Neuropathy, Left Upper Extremity

The Veteran appealed the initial disability rating assigned for left upper extremity radiculopathy, although he has not put forth a specific contention on how the disability is worse than currently rated.  The left upper extremity peripheral neuropathy has been evaluated as 20 percent disabling throughout the period on appeal under Diagnostic Code (DC) 8513 for mild, incomplete paralysis of the radicular nerves of the left (minor) upper extremity.  The Board notes that this rating is by analogy as neuropathy of all radicular nerves in the left upper extremity has not been demonstrated.

Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function.  
Under DC 8513, involving the all radicular groups of an extremity, ratings of 20 percent, 30 percent, and 60 percent are assignable for incomplete paralysis which is mild, moderate, or severe in degree, respectively.  For complete paralysis of all radicular groups, a 80 percent rating contemplates drop of hand and fingers, wrist and fingers perpetually flexed, the thumb adducted falling within the line of the outer border of the index finger; can not extend hand at wrist, extend proximal phalanges of fingers, extend thumb, or make lateral movement of wrist; supination of hand, extension and flexion of elbow weakened, the loss of synergic motion of extensors impairs the hand grip seriously; total paralysis of the triceps occurs only as the greatest rarity.  38 C.F.R. § 4.124a, DC 8513 (2017). 

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to a varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree.  38 C.F.R. § 4.124a. 

The Board observes that the terms "mild," "moderate," "moderately-severe," and "severe" are not defined in the Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.

In this case, upon VA examination in March 2012, the Veteran reported "no significant pain or numbness or tingling" in this left arm, hand, and fingers and did not note any functional limitations of the left upper extremity.  Examination revealed the absence of pain, paresthesia, and numbness, full strength and deep tendon reflexes, and normal sensory testing results.  The VA examiner even stated that the Veteran did not have any evidence of peripheral neuropathy of the left upper extremity.  

VA treatment records do not document any treatment for left upper extremity neuropathic symptoms at any time during the appellate period.  

The Board has considered all other potentially relevant DCs but finds that as the Veteran's left upper extremity peripheral neuropathy is mild, at worst, a higher disability rating is not available in the rating code.  

Finally, the Board notes that neither the Veteran nor his representative has raised any other issues such as entitlement to a rating on an extraschedular basis or a total disability rating based on individual unemployability, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Base on the foregoing, the Board finds that an increased disability rating in excess of 20 percent for left upper extremity peripheral neuropathy is not warranted and the claim must be denied.  38 U.S.C. § 5107(b).  


ORDER

An increased disability rating in excess of 30 percent for right forearm gunshot wound, through and through, with ulnar and peripheral neuropathy is denied.  

An increased disability rating in excess of 20 percent for left upper extremity peripheral neuropathy is denied.  




____________________________________________
B. T. KNOPE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs